The Braibanti affair

Marco Pannella
Notizie radicali

ABSTRACT: In January of 1969 Aldo Braibanti was condemned to nine years of prison for the crime of "plagiarism" (in Italy a concept and a crime of unduly influencing and thus "stealing" a person's personality, ed.) in impairing the will of Giovanni Sanfratello. A few years before, Sanfratello, attracted by his personality, had gone to live with him and broke off with his family and the whole traditionalist and Catholic environment in which he had been raised. The sentence - plagiarism is a rarely encountered charge and a hard one to define - struck not so much at specific crimes, but at Braibanti's non-conformist life style and his homosexuality. Following the sentence, Notizie Radicali published this comment of Pannella's. In 1972 Pannella was condemned - along with Loteta and Signorino, who had published an article on Braibanti in L'Astrolabio - for defamation, calumny and contempt.
(Notizie Radicali of January 1969, from "Marco Pannella - Writings and Discourses", Gammalibri, January 1982).

The pages, the accusations and the observations that follow are certainly serious. But they are not being presented "ab irato". If sentiments and emotional states are what have moved me to write, I want to affirm here that whatever emotional elements may have spurred me to write have by now been overcome in the course of reflection and the serene, conscious assumption of a clear responsibility. Because in no event do I want to appeal to the least idea of attenuating circumstances (juridical or human) for the existence (which is indubitable) of grave provocations or the need to defend particular social or human values.

These are even prudent pages, at least in the sense that this is a virtue and not mere cunning, a fact of inner life before being calculation and instinct of self-preservation. I am conscious of not having written anything superfluous, nothing that was determined by the desire to do harm, by malignancy, and not even by an excess in defending myself or others, legitimately or not.

I consider it urgently necessary to break a chain of violence that abuses the process and the name of justice while I note that it is settling in as an institution and its consequences progress painfully, intolerably.

I am acting once again, together with my comrades, as a Radical, in the attempt to impose and re-integrate at least a formal judicial logic there where it seems to me that prevarications and iniquities assert themselves without even a trace of shame any more, without even bothering about those hypocrisies which, in spite of everything, still constitute a kind of homage to the principle of truthfulness, if not to its concrete realisation.
This "Braibanti Affair" (which is really the "Sanfratello Affair" or the "Locajono Affair") is becoming daily more an "affair of state", whereas to remain silent about it is literally a sin of omission; not to be afraid of it, a lack of courage and, simply, of intelligence.

When, from the most "prestigious" seats of justice, the trustworthy and severe puritan tension falls into the grotesque devastation of philistinism; when, against the insuperable acquisitions of lay civilisation, there is a rhetorical and miserable return to the claim of sacredness for a state function (Guarnera to the contesting magistrates: "The noblest of human professions") and for its practitioners; when the laws - that are presumed to be known because, with equality, the "certainty" of legality for each and all exists - become in practice "merely indicative" and mysteriously violable "ad libitum" by those who are supposed to be their custodians (and they are not: the people are) and become their new masters in the shadow of alienated, alienating, captious and mendacious interpretations; when all of this happens - and it is happening - it is time to remember that whoever thinks of putting himself "above the law" is actually putting himself below it and below civil existence itself. And if, by chance, the State inidcates that it is at one with him, the "delinquency" of the rebel and the revolutionary, of the free, democratic and socialist man in the face of totalitarian power becomes the "norm", becomes itself a law. (And it is quite a different kind of "delinquency" from what I will further on attribute to President Falco.)

A last and not unnecessary statement: anyone who writes is and considers himself to be one of the "privileged" before the law. In the long years that I have been active as a professional journalist and militant Radical in political and journalistic campaigns which, by the nature of my ideas and judgements and
- why not say so? - my tastes and tendencies, were generally directed against the biggest and most arrogant potentates, against institutions which were old or modernised, "neo" or "paleo-capitalistic" or "clerical", which were unused to and intolerant of simple criticism or even the most tenuous contradiction, of the most serious accusations, which while sometimes causing utter disgrace, were always the most precise and motivated and always (like today) stated clearly and not cunningly evoked by use of that vice of saying without actually saying, of shrewdly using and inflating the conditional tense and the rhetorical negation which are the rule in the prostituted journalism we are used to (but not resigned to); of a "constitutional" but "illegal" social measuring rod, which is to say provocatively founded on the refusal to wait until the "grace" of legal "rights" and non-fascist police hordes was to fall on our country from the heavens of the Constitutional Court-
in these by now long years, I was saying, I have always punctually encountered a profoundly egalitarian kind of justice, even "friendly" I would call it if this term did not contain speculations contrary to what I want to say. I have never had a single complaint, not a single sentence or a single judicial procedure , to my knowledge, because of my writings for newspapers. In the face of a slew of charges of a clearly persecutory nature from the worst police headquarters in Italy, never have I been found guilty, never - so far - been brought to trial with one single exception when I was fully absolved because the action did not constitute a crime. Every time that I have had recourse to justice to protect my interests that I considered damaged by something published in a newspaper I have always had full satisfaction. When, by chance, I became aware of having a whole slew of charges dismissed which I did not know had even been brought, I saw verdicts that were democratic and advanced - at least with respect to the philo-authoritarian political and judicial power of the Court of Appeals.

I am undergoing legal proceedings (political) which come under the amnesty law, but I shall refrain from requesting amnesty because I believe in the possibility of serious confrontations rather than legal tricks.

As chance would have it, I generally have found myself appearing before magistrates whose ideas were profoundly different and mostly opposed to mine - facts which it has now become my unforeseeable duty to state in homage.

More, much more, could be added, but I must excuse myself for already having deemed it necessary to dedicate so much space to things that regard me personally even after so many years. Perhaps it is worth adding that I have never personally known any judges up until the other day when we gathered in Piazza Cavour for the "counter-inauguration" and met in the best and - yes - noblest of ways as democratic citizens civically committed.

My solidarity, as is well known, has always led me to belong to that slice of humanity composed of the disinherited and the rovers, the guilty and the incarcerated, the locked-up madmen, the offended and the perverse, the demonstrators and protesters, whose roads are generally different from those where I would be able to stop and meet even the best - or the worst - of judges.

Perhaps for this reason too, if already today Guarnera or Velotti or Falco should deem it the right moment to send me their Captain Varasco, that would be logical land natural if not right. Not all of them, and not always, will they have the strength of character - I know it - to wait for more advantageous and "dishonourable" lynchings to take place that so many have vainly prepared and
attempted. In the end, all the better.
I reject my condition of "privilege": either freedom with all due "rights", or better "locked-up" inasmuch as those whose only patrimony consists of "wrongs" are too many and are always growing more numerous.

I have no resentments, therefore I will be accountable for every word that I speak, or rather remember in a disordered manner and summarise in a (necessarily) approximate way.

A good conscience at a cheap price? The trap of that same philistinism that I encountered in the words and the work of Public Prosecutor Guarnera? The facts will tell. Dr. Orlando Falco, councillor of the Court of Appeals, continually violated the law for five months: while under obligation to deposit the grounds of the sentence imposed on Aldo Braibanti within 20 days of the date when the Court of Appeals, presided over by him, pronounced it - that is, July 14 - he delayed complying with this unconditional legal obligation until December 30. He who violates the law commits a crime. Falco violated the law. Therefore Falco was a criminal. Because of a normal and minimal need of equity, I feel impelled to say and write this (submitting it particularly to the attention of Dr. Falco himself, to the Public Prosecutor's Office and to the Roman District Attorney's Office). Hundreds of thousands of pages written to study deeply the different character of *ordinatorie and perentorie laws and dispositions will never convince us, in fact, to accept certain distortions - not even and above all on a semantic level - which would mean that one is or is not a criminal according to the class or to the side one be
longs to rather than because of what one has done and is doing.
(* In the Italian penal code two types of laws exist: the odinatorie which need not be observed without consequent penal sanctions, and the perentorie which must be observed, ed.)

We cannot consider this a secondary question nor a "mere" principle, either because we belong to that restricted category of sub-humans for whom principles can never be "mere" nor concrete, or because this episode subsumes and nails down a fundamental, that is to say a constituent characteristic of the "Braibanti Affair".

Let us see why:

1 - Falco's job was to declare the reasons that were in effect expressed and determined in the Council's chambers, not all those which might have motivated Braibanti's condemnation or that might motivate a condemnation for "plagiarism". It was not his job to treat us to a better harangue than the one we had to hear from Dr. Lojacono; nor was it to do violence to the collective nature of the sentence by attributing features to the debate in the Council Chamber that it could not have had, nor to the conscience of the jurors, or knowledge, motivations, objectives, and evaluations to the Court which were not theirs.

2 - It is certainly not an accident if the law entrusts and prescribes the same time limits to the judges and to the defendant for respectively illustrating the reasons for the sentence and those for the appeal (twenty days). Now Aldo Braibanti and his lawyers, Rejna and Sotgiu, will have twenty days (or else the appeal time expires) to read, sift through, invalidate and counterattack the tome (340 pages) written by Falco. It will be impossible (for them!) to get the help of experts and consultants, to find time to study the sources so abundantly cited by the judge, to seriously compare the facts of the trial with what is stated in the document... Once again it will thus be impossible to make a serious use of the right to defence because of the continuous, conscious, fraudulent illegalities that have been the rule in the trial of Braibanti.

3 - Dr. Falco declared that only "pressure" from the press compelled him finally to deposit the grounds for the sentence
(cf. statement made to the journalist Mario Cartoni in The Nation). As far as we know, the "pressures" from the press can be traced back to three episodes in the last few weeks:

a) the publication of an appeal signed by about one hundred citizens in favour of Braibanti and his right to "legal" processes of justice rather than prevaricating and repressive ones;

b) the publication in the magazine Men of a letter to his mother written by Braibanti from prison;

c) the publication in several newspapers of a few passages from the letter of his lawyer Mr. Rejna to Braibanti explaining why Dr. Falco's actions had left him practically unable to make use of the defence mechanisms foreseen by the law;

Having said that much, let us now get down to the essentials on this point.

Dr. Falco openly admits that it is not the need of finally respecting the law, but rather pressures from a certain part of public opinion that have led him to deposit the grounds for the sentence. According to his declarations, he thought he had only about half finished his short, he no longer avails himself of even of that alibi - overwork - which is being used by squadrons of judges to systematically violate the law concerning the writing up of the grounds for sentences. Overwork which, in fact, sometimes really is responsible for the malfunctioning and the crisis of judicial procedures. So now it is all quite clear:
if he has not respected the law, it is because the affair of Giovanni Sanfratello and Aldo Braibanti (let us not forget it, Your Honours, however convenient it might be to do so) is "fascinating", is extremely important, - we find ourselves here in a situation of "de jure condendo" - is the personification of one of the most delicate and urgent situations to typify our corrupt society; and "plagiarism" becomes an always more necessary concept for defining the areas in which our "spirits", our "souls" become enmeshed, corrupted, possessed by the modern devil, and so on, and so forth.
Therefore there is no reason - right, Dr. Falco? - to let oneself get tied up by legalistic considerations in the face of such an important issue and so great an opportunity!

But what sort of justice is this, Dr. Falco, that is only valid for banal and ordinary cases, that does not assert its majesty and nobility, as Dr. Guarnera would probably call it, precisely in the gravest of cases? Justice that is only valid for the weak and not the strong? It makes one think, Dr. Guarnera, of those Protestants a few years back who replied to their coreligionists, when these complained of the neo-ecumenical fad that had led to the frivolous celebration of the mass by priests and pastors together, by saying: "But at bottom, it doesn't mean that any organizational or political agreements have been made, it's only a question of worship!... "Only". In the face of the prayers of the faithful and the temple of God! Here too we are "only" dealing with laws and we have been told quite clearly that these are not worth nearly as much as our shrieks and admonitions. But let us proceed.

Even before Braibanti's lawyers received notice of the deposition of the sentence, the news was leaked to two "independent" Rome newspapers, who were able to publish the essential contents.
Everyday stuff, and apparently the kind that shows that we Italian journalists know how to do our job in certain sectors better than we are normally given credit for. That is not the point.

Dr. Guarnera has taken up the cudgels publicly, and perhaps somewhat illicitly (the trial is in progress, there is still the presumption of innocence, the Prosecutor General's contribution will certainly weigh heavily in the solemnity of the opening of the judicial year) with those intellectual and journalistic circles that have tried to protect Sanfratello and Braibanti from the violence and the lynching that they have been subjected to. Dr. Guarnera has exposed us to public derision because thus we would have excited the "strange" (sic) persons who were present at the trial to attack the jury on the evening of the sentencing.

The moment has now come to ask a few questions and to define more precisely the relationship of the press to the "Braibanti Affair".

Public opinion was informed about the Braibanti affair (by a news "leak" during the judicial enquiry) in the most clamorous way and according to the theses of the official and unofficial prosecution which then often turned out to be erroneous and false. A lynching campaign then began; Il Tempo, Lo Specchio, a Piacenza newspaper of the Confindustria (confederation of industrialists) chain revealed that there was nothing they did not know about the facts and the judicial situation. Taken by surprise, the other newspapers were silent.

Just how much there was here of "the duty to inform", how objective the information, how "judicial", how concerned the institutions of justice, law, morality - this is demonstrated by the fact that not one line was written to indicate (let alone denounce) the illegality or at least the patent, scandalous, anomaly of the judicial enquiry, evident even to a first year law student, justified by nothing, entirely gratuitous and incredible. Not to mention the miserable (if habitual) craftiness that led to hiding even the name of one of the two "plagiarised", of the only one who made an accusation and on which was built the whole edifice of the enquiry first, and then the trial and the condemnation. These are things that we gradually discovered during the trial and only during the trial.

At which time strange things happened, Dr. Falco, Dr. Guarnera!
Allow us, for example, to tell - at last - that you, Dr. Falco, in the presence of Dr. Lojacano, asked a defending lawyer suspected of being a Radical (although his dignity, his prestige and his morality were great!) to disavow and publicly criticise, in the courtroom, this mimeographed Notizie Radicali of ours, guilty of having attacked the enquiry, the prosecutor, and the climate of the trial without hypocrisy and without false respect.
He was asked to make this unusual, superfluous, humiliating declaration, explicitly in relation to the ... uncommon "concession" made to the defence to present four rather than two harangues on the condition that they be "brief", "to the point".

Olympian serenity of the law, ineffable correctness of procedures, equality of all citizens before the law! Who is it then to have disturbed you?

Equality in particular - is it not true Dr. Lojacano? Dr.Falco? -
for Notizie Radicali and for the right- and far right-wing press, for newspapers and journalists who immediately and in advance
"knew everything", thanks - yes, thanks to whom, Dr. Lojacano?

That should be enough for today. But perhaps for Dr. Guarnera, Prosecutor General of the Rome Appeals Court; for the High Council of the Magistracy, not excluding its president; for the National Association of Magistrates; for the Minister of Justice; for the Rome Association of Attorneys; for some member of Parliament or other who puts importance on the fact that he represents the Italian people in whose name justice is being made a laughing stock, it may still be worth the effort to add something more. Beside what has already been said, it would be worthwhile calling their attention to the enquiry that has condemned Aldo Braibanti and put him in jail, and which is anti-constitutional, illegal even according to the "Rocco Code" and any other code worthy of the name.
A judicial enquiry that lasted three and one half years; conducted in the summary manner although the law allows this only in cases that are "brief and easy" - whereas here, right from the first accusation, it was a case of a crime practically without precedents. And it was kept summary even when, after a year, it was decided to turn to three experts to determine elements essential for arriving at a decision; still kept summary when it was found necessary to ask the experts for a further and more detailed research which was evidently neither brief nor easy; reconfirmed as summary again, when it was learned that one of the "plagiarised", who had undergone years of annihilating treatments and was now once again considered completely sane and capable of willing and understanding, decisively denied the charge of "plagiarism" and the responsibility of Braibanti. And summary still when it evidently became necessary to hide the true identity of the second plagiarised person in order to avoid revealing aspects of his character and several notorious facts that then did come to light and were of a kind to taint the whole basis of his accusation with lies and reveal his personality as murky and untrustworthy.

An enquiry that in three years made not a single effort to formally acquire information on the principle of the accusation, whereas after a few days the competent " authorities" were mobilised to acquire the proofs of a crime that they said they were almost certain had taken place involving Braibanti's whole circle...
An enquiry ( and a trial) with farcical aspects in which judges, experts, defenders, did not disdain to discuss the case in a convivial manner and at the expense of a man - better, two men - the "practitioners of justice" were capable of performing minuets of courtesy.

An enquiry during which,or better at the very beginning of which, an abduction was described that was not considered worth of a single formal act, a single mention, an independent investigation.

And what constituted the absolute, sugary credibility of the one part and the immediate presumption of guilt and unworthiness of the other, if not the "cultural", "moral", "political" homogeneousness of several clerical and reactionary citizens with relations in high places - ecclesiastical and juridical - as against the citizens of a particular, different, opposite cultural world? It is a common, instinctive pattern of persecution that in turn catalyses other interests, other stories, new factors.

What can one say if up to now , after more than four years, in spite of polemics, by now scorching confrontations, neither the Prosecutor's Office, nor the Court, nor the Prosecutor General has done anything to overcome and clear up anomalies, irregularities, illegalities or at least confused aspects of the case? (But on the contrary, we will have to submit to further aggressions that, it seems to me, will give good grounds to claims by Braibanti's defenders of legitimate suspicion for the appeal.)

By God, Dr. Guarnera, is it really possible that you don't know all of this? Do you really think that we are the aggressors, the perverse and purposeful destroyers of an "order" that, in any case, exists or doesn't exist according to whether it is Public Prosecutors or Presidents of the Republic who are speaking of chaos, or whether it is the victims and the "dissenters" who speak of constituted disorder?

But enough of this.

Who and where are the aggressors and the aggressed? On which part legal violence and gratuitous offence? Who are the saboteurs of justice and political institutions? Where is the struggle taking place for "good" laws, for order, for at least a little order? Who is plagiarising and who abducting? Which side is attempting more or less secret "persuasions", influencing through the press, prevaricating with force?

And it is clear who really has an obsession with revenge, who career anxieties, who frustrated or frustrating aspirations to culture, who a mortified thirst for prestige and recognition, who the desire to "convince" at all costs - even to the detriment of laws and at the price of crimes, who practices the dark profession of ransacking and persecuting the consciences of all others with the dark sword of the inquisition in hand, who the obsessive and delirious need of the sexophobic and the impotent to speak of sex and see it everywhere, the need of the oppressor to evoke "true" liberty and personal dignity, of the creator of order to nail to it all those who contest it.

And it is also clear which side has wanted to turn this affair into an instrument of counterpoise, into an assertive and violent political battle.

Let us say it straight out: Braibanti is the name that has been given - "maliciously" you would say, Dr. Falco - to more or less interior biographies that dare not reveal themselves; to the interior demons of our times, of the fearful and guilty conscience of the dominating classes; of a society turned to stone by the madness, the violence, the perversion that it itself creates and spreads. And it is also, for us, the name of an inevitable and perhaps incomparable opportunity to arrive at truth and to fight, because it shows us that we have no need and no chance to use make-up and baubles, and it invites and compels us to assume responsibility for what we are.

We would have preferred - we too shall avail ourselves of quotations - to "let the dead bury their dead". They didn't want to. They thought that they would find salvation in giving substance to their obsessions. They continue to do it; others join them.
We hoped that with Braibanti we would have decapitated or burned one of their faces, but the one that they were hiding and which we ourselves now know better, was not reducible to it. They were nothing but sorcerer's apprentices and now they will harvest the whirlwind, still more violent, of the new and the just. They will not even be able to put their laws, their justice, their order into effect, because they too belong to us and we to them. Aware and frightened, they only availed themselves of fraud, violence and crime. These are not "errors" nor the "degeneration" of the power system, but its single, inescapable road of self assertion and defence.

Yes, Guarnera. How many of you were there handling the Braibanti case? Silvio and Bertrando Spaventa, Cesare Beccaria and Zanardelli are enough for me to oppose you in toto. Yes, the Milanese judge Petrella is quite right in saying - as he has been accused of by others of his caste - that one must put an end to this state of Italian "justice" even by violence, if necessary. We would have the right and the duty to use it in that case, and use it to your measure.

But violence is typical of you and is your property. By now it is yours alone - your beginning and your end; we leave it to you. Truly free men don't need it, not here and not now. (Braibanti said this as well and he was right).